UN Working Group on Arbitrary Detention Opinion: 20 Bahrainis are Arbitrary Detained as part of “Zulfiqar trial”

  The United Nations (UN) Working Group on Arbitrary Detention (WGAD) published an opinion concerning the cases of 20 Bahraini citizens convicted by the Bahraini Fourth High Criminal Court on 15 May 2018, following a mass trial involving 138 defendants. These 138 defendants were convicted for their alleged involvement in a terrorist cell, called the “Zulfiqar Brigades” by the Bahraini government. The WGAD ultimately determined that the imprisonment of these individuals is in violation of several international human rights laws concerning their arbitrary detention. The Working Group has requested the government of Bahrain to take immediate action to remedy the situation. This includes the immediate and unconditional release of the prisoners who remain in detention, and ensure that they receive medical care. According to the Working Group, under certain circumstances, widespread or systematic imprisonment or other severe deprivation of liberty may constitute crimes against humanity. Due to the global coronavirus (COVID-19) pandemic, WGAD maintains there is a further deepening threat toward the health of individuals held in detention – and that the Bahraini Government needs to immediately release the 18 individuals to mitigate against the threat of the disease.

As a matter of practice, Americans for Democracy & Human Rights in Bahrain (ADHRB) regularly receives information from Bahraini individuals and employs their accounts as key evidence in submitted complaints by the United Nations (UN). ADHRB welcomes this opinion by the UN, and urges the Bahraini authorities to follow the recommendations without delay.

The WGAD is one of the Special Procedures offices of the UN Human Rights Council. As part of its regular procedures, the Working Group sends allegation letters to governments concerning credible cases of arbitrary detentions. The Working Group may also render opinions on whether an individual or group’s detention is arbitrary and in violation of international law. The WGAD reviews cases under five categories of arbitrary detention: when it is clearly impossible to invoke legal basis justifying the deprivation of liberty (Category I); when the deprivation of liberty results from the exercise of the rights to equal protection of the law, freedom of thought, freedom of opinion and expression, and freedom of assembly, among others (Category III); when violations of the right to a fair trial are so severe that the detention is rendered arbitrary (Category III); prolonged administrative custody for refugees and asylum seekers (Category IV); and when the detention is discriminatory on the basis of birth, national, ethnic or social origin, language, religion, economic condition, political or other opinion, gender, sexual orientation, disability, or any other status (Category V). On 5 November 2018, five UN rights experts published an allegation letter to the Bahraini government concerning the unfair mass trial on Zulfiqar Brigades.

In the present opinion, the twenty inmates are as follows: Ali Isa Al-Tajer; Hasan Radhi Hasan Abdulla AlBaqali; Ahmed Isa Ahmed Yahya Ali; Ahmed Abdul Hasan Habib Yusuf Husain; Mahmood Saeed Ahmed Isa Abdulla; Ali Husain Ali Abdulla AlShaikh; Sayed Ahmed Ali Mohamed Ali Mohamed; Husain Abdulla Juma Maki Mohamed; Mohamed Abdulelah Abduljalil Ahmed; Jasim Mohamed Abdulla Ebrahim; Ahmed Khalil Ebrahim Ali Ahmed; Salman Ali Salman Mohamed Saleh; Mohamed Jameel Abdulnabi Mansoor AlToblani; Mahdi Ali Hasan Mahdi Khalaf; Taha Sayed Jawad Shubar; Husain Mohsen Salman Maki Ali Al Meftah; Husain Abdulla Salman Khalaf; Abdulelah Sayed Ali Ahmed Ebrahim Ahmed; Ali Ahmed Ali Abbas AlHalal; Isa Jaber Ebrahim Habib Hasan.

The dates of their arrest range from March 2015 to November 2017. The alleged violations involve an arrest without a warrant, enforced disappearance and torture. The most common methods of torture include beatings, electric shocks, the deprivation of food and drink, and threats of sexual assault. Two of the defendants were minors at the time of their arrest (Abdulla and AlShaikh). Due to the torture that they were inflicted with, several of the defendants confessed or were were forced to sign statements of which they were unaware of the contents.

Many of the hearings were conducted in the absence of the accused, and even when the individuals were present they were not permitted to speak in their own defense or provide evidence. On 15 May 2018, Bahraini’s Fourth High Criminal Court convicted 115 of the 138 defendants. Only one defendant was present in the courtroom during the ruling; others were represented by a lawyer, or not represented at all. The Court sentenced the 115 individuals from three years to life imprisonment and revoked their Bahraini nationality.

16 individuals, namely Ali, Husain, Abdulla, AlShaikh, Mohamed, Ahmed, Ebrahim, Ali Ahmed, Saleh, Mahdi Khalaf, Shubar, Al Meftah, Khalaf, Ebrahim Ahmed, AlHalal and Hasan were arrested without a warrant and four of them were not informed of the reason for their arrests. Most of them were held for months without criminal charges. The WGAD has found a consistent pattern of behaviour by Bahraini authorities in not providing arrest warrants and reasons for the arrests. A prompt notification of the charges is often not provided, which suggests that the failure to comply with arrest procedures is a systemic problem. On this regard, the WGAD reported that 16 individuals were arrested without a warrant. The government did not address this allegation.

In these cases, the Working Group has found the detentions to be arbitrary when evidence obtained without a search warrant was used in court proceedings. Moreover, some of the individuals were not brought promptly before a judicial authority to challenge the legality of their detention, specifically the cases of Husain, Adbulla, Al Meftah and Ebrahim Ahmed. The WGAD noticed a particularly serious delay for the two minors; Abdulla and AlShaikh. Finally, 14 individuals were subjected to enforced disappearances for periods ranging from a few days to one month. The government stated that the allegation that enforced disappearances had been employed by the authorities were unsubstantiated. However, the government did not provide any detailed relation of the specific location of the individuals following their arrest, or any information to suggest that their families and lawyers knew their fate and whereabouts. These cases of enforced disappearances violate articles 9 and 14 of the ICCPR and constitute a particularly aggravated form of arbitrary detention. The Working Group finds that the Government failed to establish a legal basis for the detention of all the nineteen individuals who are the subjects of this case.

17 individuals namely Al-Tajer, AlBaqali, Ali, Husain, Abdulla, AlShaikh, Mohamed, Ebrahim, Ali Ahmed, Saleh, Mahdi Khalaf, Shubar, Al Meftah, Khalaf, Ebrahim Ahmed, AlHalal and Hasan were subjected to torture and ill treatment, resulting in 14 cases of coerced confessions. Four individuals were allegedly subjected to multiple rounds of torture. The Government responded to the allegations by noting that the torture and ill-tretment is prohibited under domestic legislation, and that several institutions exist to investigate such allegations. According to the WGAD, the Government has not presented a credible rebuttal to the source’s allegations, as the examinations took place well after the alleged torture and ill-treatment had happened. In this instance, the WGAD considers these actions as an extreme abuse of power by the Government of Bahrain.

Indeed, at least 14 of the 17 individuals including, Al-Tajer, AlBaqali, Husain, Abdulla, AlShaikh, Mohamed, Ebrahim, Ali Ahmed, Saleh, Al Meftah, Khalaf, Ebrahim Ahmed, AlHalal and Hasan were forced to confess as a result of torture and ill-treatment. Some of them were forced to sign documents without knowledge of the content of the statements. Additionally, forced confessions were employed in at least one instance to convict Mr. AlHalal. This in contrast to UN guidelines, confessions made in the absence of legal representation are not admissible as evidence in criminal proceedings. Furthermore, the admission into evidence of a statement, obtained through torture or ill-treatment, renders the entire proceedings unfair – regardless of whether other evidence was available to support the verdict. The burden of proof is on the Government to demonstrate that statements of guilt were given freely. This was not the case in this instance.  The Working Group notes that the allegations imply that a range of agencies accross the Bahraini justice system are actively engaging or complicit in torture and ill-treatment, against individuals within their custody. The WGAD also maintains that the forced confessions were relied on by courts in somes cases, which raises significant doubts as to their independence and impartiality.

Finally, these individuals were convicted by the High Criminal Court in a mass trial, which is incompatible with the interests of justice and does not meet the internationally recognised standards of a fair trial according to the Working Group. 17 individuals had restricted access to legal representation and were not afforded their right to adequate time and facilities for the preparation of their defence. They were also not permitted to communicate with counsel of their choosing. In the case of the two minors, Abdulla and Alshaikh, many of their rights under the Convention on the Rights of the Child were violated by the government of Bahrain. These rights include: the right to prompt access to legal assistance, assistance in the preparation of their defence and a fair hearing in the presence of a lawyer is ensured.

The authorities restricted the ability of 12 individuals, including Al-Tajer, AlBaqali, Ali, Husain, Abdulla, AlShaikh, Mohamed, Al Meftah, Khalaf, Ebrahim Ahmed, AlHalal and Hasan, to contact their families after their arrest and during their initial detention. Many of the trial hearings were conducted in the absence of the accused, with restrictions on attendance affecting at least four individuals. Only one individual was present in the courtroom when the Court made its ruling, while others were represented by a lawyer, or not represented at all. The Working Group takes note of allegations relating to the violation of the individuals’ right to a fair trial. These include not being allowed to speak in their own defence or to provide evidence (Mr. Abdulla), rejection of allegations of torture (Mr. Husain), use of planted evidence at trial ( Ali Ahmed and Shubar), and denying family visits as a punishment (Mr. Abdulla). All these practices contributed and resulted in unfair proceedings.

Some accounts stated that several individuals were detained because they are Shia. Ali, Husain, Abdulla, Mohamed, Saleh and AlHalal maintain they were subjected to harsher treatment because of this reason. However, WGAD insists that their religion did not play a part in the reason for their detention.

As mentioned before, the Working Group urges the Government of Bahrain to immediately and unconditionally release those who remain in detention and ensure that they receive medical care. Under certain circumstances, widespread or systematic imprisonment, or other severe deprivation of liberty in violation of the rules of international law, may constitute crimes against humanity. Americans for Democracy & Human Rights in Bahrain (ADHRB) welcomes the opinion of the Working Group, and urges the Bahraini authorities to urgently follow the given recommendations.

The Working Group would welcome the opportunity to engage constructively with the Government of Bahrain through a country visit. According to the WGAD, the deprivation of liberty of the nineteen individuals is in contravention of articles 6, 8, 9, 10 and 11 of the Universal Declaration of Human Rights and articles 2(3), 9, 14 and 16 of the International Covenant on Civil and Political Rights. The Working Group requests the Government of Bahrain to take the necessary steps to remedy the situation of these detainees by releasing the eighteen individuals who remain in detention. Moreover, the Bahraini government should accord all of the nineteen individuals an enforceable right to compensation and other reparations, including renewal of their identification documents as proof of their restored Bahraini citizenship and expunging their criminal records, in accordance with international law. The Working Group urges the Government of Bahrain to ensure a full and independent investigation of the circumstances surrounding the arbitrary deprivation of liberty of the nineteen individuals with the view to hold the perpetrators to account.

ADHRB fully supports the WGAD’s recommendations and echoes its calls for the immediate release of the eighteen individuals still currently detained. We further welcome the commentary by the WGAD on the right to challenge the legality of detention before a court, the right to a fair trial, and the right to freedom of opinion and expression. We urge the Bahraini authorities to accept the Working Group’s pending request for a country visit, which has gone unanswered since January 2017.